Great Christian Jurists in Spanish History edited by
Rafael Domingo and Javier Martínez-Torrón
This volume is part of a 50-volume series on “Great Christian Jurists in World History, “presenting the interaction of law and Christianity through the biographies of 1000 legal figures of the past two millennia. Commissioned by the Center for the Study of Law and Religion at Emory University, each volume in this series focuses on a specific country, region, or era, and it samples the life and work of a score or more of its greatest legal minds over the centuries. These legal minds include not only civil and canon lawyers and judges, but also theologians, philosophers, and church leaders who contributed decisively to legal ideas and institutions, or who helped create landmark statutes, canons, or cases. Thus, familiar Christian jurists like Gratian, Grotius, Blackstone, Kuttner, and Scalia appear in this series, but so do Augustine, Isidore, Aquinas, Calvin, Barth, and Romero. This biographical approach is not intended to deprecate institutional, doctrinal, social, or intellectual histories of law and religion, nor will it devolve into a new form of hagiography or hero worship of dead white males. It is instead designed to offer a simple method and common heuristic to study the interaction of law and Christianity around the world over the past two millennia.
Columbia University Press opened this series in 2006 with a three-volume work on Modern Christian Teachings on Law, Politics, and Human Nature, featuring thirty modern Catholic, Protestant, and Orthodox Christian figures. Cambridge University Press has new titles on great Christian jurists in the first millennium, as well as in English, Spanish, French, Lowlands, and American history. Routledge is taking up the Italian, Nordic, Russian, Welsh, and Latin American stories; Mohr Siebeck the German story; Federation Press the Australian story. Forthcoming titles will cover great Christian jurists in the history of Scotland, Ireland, Austria, Switzerland, Greece, and various countries and regions in Eastern Europe, the Middle East, Africa, and Asia.
An Overview and Introduction by the editors
Rafael Domingo and Javier Martínez-Torrón
This volume, which examines the life and work of twenty Spanish Christian Jurists Spanish, has been written by distinguished legal historians, canon lawyers, philosophers, and theologians, including R. H. Helmholz (University of Chicago), Philip L. Reynolds (Emory University), and Wim Decock (KU Leuven), who are editors of other series volumes on great Christian jurists. Some of the Christian jurists selected in this book will be quite familiar to readers from the Anglo-American legal culture (Isidore of Seville, Raymond of Penyafort, Bartolomé de las Casas, Francisco Vitoria, or Francisco Suárez, among others), while others will be less familiar or even rather unknown outside the world of civil law (Martínez Marina, Arenal, Alonso Martínez, Lombardía, or d’Ors). The volume tries to contribute to clarifying the role played by the former and to making the latter better known.
Although the volume selects figures that represent different epochs of Spanish history, half of the selected Christian jurists belonged to the so-called Spanish scholasticism. Based on medieval high scholasticism, and especially on the thought of the thirteenth-century Dominican Thomas Aquinas, Spanish scholasticism engaged the contemporary movements of humanism and the Renaissance, especially at the University of Salamanca. Its practitioners (Vitoria, Soto, Molina, Suárez, among others) developed new forms of political order, challenging the concepts of colonization and the Reformation. According to new scholasticism, theology’s interest in the law was derived from theology’s perceived status as the mother of all sciences (mater scientiarum omnium), whose domain covered both divine and natural law.
Like Thomas Aquinas, the Spanish Scholastics saw the law not as a set of arbitrary orders by civil authorities but as principles and rules based on divine reason (of which human reason was a spark) that illuminate and inform human action. At the same time, Spanish scholastics understood that, although theology should illuminate the legal realm, claims to freedom and basic human rights could be conceived and framed independently of religious belief. Spanish scholasticism is still pertinent to enduring ethical disputes over globalization, basic human rights, just war, alternatives to war, interventionism, preventive self-defense, and the interaction of law and religion.
Considering the political circumstances in which they lived, it is a remarkable fact that Golden Age Spanish jurists and theorists challenged many of the prevailing notions of their time, in an attempt to reconcile Christian principles with modernity, in the context of a world that was changing rapidly and deeply – from its geographical boundaries to the concept of wealth, the development of urban life, the emergence of new political scenarios, or a larger religious pluralism. Some of those thinkers (especially, Bartolomé de Las Casas) had the courage to be extremely critical of the Spanish conquest of America, questioning not only its practical ways – including slavery or forced baptisms – but also the legal, philosophical, and, theological principles that were used to justify it.
In addition to Spanish Scholasticism, the most salient Spanish contributions to Western legal are the following:
a) Consolidation of European legal culture after the collapse of Western Roman Empire. A fruitful union between Roman and Germanic cultures was forged in Gothic Spain. By arguing that the Goths and not the Byzantines were the real spiritual heirs of the Roman Empire, Isidore of Seville contributed to developing the consciousness of a true European culture. Meanwhile, The Etymologies of Isidore of Seville, the basic encyclopedia of the medieval West, bridged the ancient world and medieval Europe.
b) Expansion of Western legal culture to Latin America. The extremely influential compilation of the Siete Partidas (1265), the centerpiece of the legislative activity of King Alfonso X of Castile, as well as such other compilations as the Ordinances of Alcalá (1348), Laws of Toro (1505), the New Recompilation of Castile (1567), the Recompilation of the Laws of the Indies (1680), and the harshly criticized Newest Recompilation (1805), contributed to the spread of Western legal traditions to Spanish America. Although the French Civil Code was the North Star of codification in Latin America, the García Goyena Spanish Civil Code Project (1851) and the Spanish Civil Code (1889) were also extraordinary vehicles for transmitting Western legal principles and values in Latin American countries. Spanish influence in Latin American law has continued until the present day through scholarship.
c) Consolidation and development of canon law. The Spanish contribution to canon law is uninterrupted. The famous collection of the Decretals of Gregory IX (also called Liber Extra) was compiled by the Catalonian Raymond of Penyafort and was one of the key elements of the Corpus Iuris Canonici, which in turn was a central piece of medieval ius commune, applied all over Europe. Azpilcueta’s handbook for confessors constituted a turning point in moral theology. Antonio Agustín was a pioneer in the historical research of sources of canon law. Sanchez’s treatise on marriage was the leading handbook on marital issues for centuries. At least twelve editions of Covarrubias’s Opera Omnia were published in Europe between 1583 and 1724. Lombardía contributed to modernizing canon law, adapting it to the doctrine of the Second Vatican Council. The list of contributions is endless.
d) Development of the idea of the law of nations. Spanish Jurists are considered precursors of the modern approach to international law, of which Hugo Grotius is normally considered the best exponent. The School of Salamanca anticipated the application of natural law and the law of nations to the political relations of early modern nation-states. Based on Roman law principles and moral theology, Spanish jurists developed a conceptual terminology that was very helpful in developing the legal foundations of relations among modern nation-states.
e) Pioneering the human rights movement. During his nearly fifty years of experience in the Americas, Bartolomé de las Casas vigorously condemned slavery and the violent abuse of indigenous peoples by Spaniards. He is considered one of the first human rights activists. Centuries later, the social reformer Concepción Arenal advocated for the most exposed and vulnerable groups in Spain, opening the door to the emergence of a feminist movement based on Christian values.
The twenty Spanish legal figures selected in this book manifest the relevance of Christian values for the law. Indeed, one of the lessons that can be learned from this book is the need to recover the dialogue between law and Christianity, and more generally between law and religion, in an era that has been often labeled as postmodern, an ambiguous word that probably reflects the hesitations of a cultural period that is reluctant to define itself in clear and positive terms. ♦
Rafael Domingo is Spruill Family Professor of Law and Religion at Emory University and Alvaro d’Ors Professor of Law at the University of Navarra.
Javier Martínez-Torrón is Professor of Law at the Complutense University of Madrid. He has been director of the Department of Law and Religion at Complutense University since 2009.